Lancaster v. US, Civ. No. S 95-2488.

• Decision Date: 04 June 1996
• Docket Number: Civ. No. S 95-2488.
• Citation: 927 F. Supp. 887
• Parties: Kameron X. LANCASTER, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Maryland

927 F. Supp. 887

Kameron X. LANCASTER, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. S 95-2488.

United States District Court, D. Maryland.

June 4, 1996.

Michael A. Pulver, Spence, Kohler, Christie & Pulver, Towson, MD, for plaintiffs.

Leland S. Van Koten, Timothy B. Walthall, Torts Branch, Civil Division, U.S. Department of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION

SMALKIN, District Judge.

Infant plaintiff Kameron X. Lancaster, by his mother and next friend, Michelle Lee, and Michelle Lee, individually, have brought this suit against the United States claiming negligence.¹ The plaintiffs allege that Kameron Lancaster ingested lead paint chips while living with his mother, Michelle Lee, and his grandmother, Florence Lee, in an employee housing unit at the Perry Point VA Medical Center VAMC. The housing units are managed, maintained, operated, and controlled by the United States. (Compl. at paras. 4, 7, 18). In the complaint, the plaintiffs contend that the United States breached its duty to the plaintiffs by (1) failing to inspect the house properly for lead paint, (2) failing adequately to warn the plaintiffs of the dangerous level of lead paint in the house and of the dangerous effects of lead-poisoning, (3) failing properly to maintain the property to prevent exposure to lead paint, (4) failing to remove the lead paint in a reasonable and safe manner, and (5) failing to comply with applicable laws, rules, regulations, and ordinances. (Compl. at para. 17). The plaintiffs maintain that the defendant's negligence proximately caused their injuries. (Compl. para. 21). They seek damages for past and future medical expenses, pain and suffering, loss of earning capacity, and other unspecified damages. (Compl. at paras. 20, 25). Jurisdiction is asserted under the Federal Torts Claims Act, 28 U.S.C. 2680(a).

This case is currently before the Court on the United States' motion to dismiss Counts I and II of plaintiffs' complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). According to the government, the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a) bars these claims. The government's motion has been fully briefed, and no oral hearing is necessary.

I

The VAMC at Perry Point is comprised of several patient-care and other functional buildings, as well as 112 residential units, which are occupied by medical center staff and their family. These housing units are located in what is known as the Village. (Pls' App. at 1, Def's App. at 73). As early as 1978, two years before Florence Lee moved into VAMC housing, the VAMC was aware of a potential lead paint problem in some of the Village houses. On April 13, 1978, the hospital director Albert M. Horton sent Hospital Memorandum No. V-1.05 to Village residents. (Pls' App. at 40-42). The Memorandum, entitled "Lead Paint Hazard," warned the residents that the old paint in the Village houses would likely contain lead paint and reproduced a HUD warning concerning the danger of lead paint poisoning. In addition to this warning, VAMC published a general warning regarding the potential lead paint hazard in a Center Memorandum 138-8, (Pls' App. at 15), which was given to all new residents and which was periodically sent to Village residents between 1980 and 1990. (Pls' App. at 4). The warning in the Center Memorandum provided:

Notice of Possible Health Hazard

Village Residents with small children should be aware that paint used in the quarters before approximately 1957 contained lead. Although the hospital has not used paint containing lead since 1957 and has taken continuous steps to scrape and paint housekeeping quarters with non-lead paint, it is conceivable that paint chips may contain some old lead paint. Therefore, residents should exercise care to prevent small children, who are likely to do so, from eating flakes of paint.

(Pl's App. at 15). A copy of the Center Memorandum was given to Florence Lee when she moved into the Village house. She acknowledged having read it on February 19, 1981. (Pls' App. 3). She also acknowledged having read a copy of the Memorandum on July 20, 1987, when she received new keys. (Pls' App. at 3-4).

Between 1980 and 1990, the VAMC inspected Village houses when they were vacated and conducted periodic routine inspections. Florence Lee's home was inspected every October between the years 1983 and 1990. (Pls' App. at 7). All but the 1985 inspection indicated that the interior of the house was in satisfactory condition. (Def's App. at 64-71). After the 1985 inspection, the interior of Ms. Lee's home was repainted by Village maintenance staff. (Pls' App. at 7). Non-lead-based paint was used. (Def's App. at 1-4).

In October of 1990, Denise O'Donnell, a VAMC nurse living with her family in Village housing, found her two year old with a paint chip in his mouth. (Pls' App. at 43). Chips of paint from Denise O'Donnell's house were tested, and the analysis showed that the chips contained lead. (Pls' App. at 44). In response, VAMC management began looking at "the best means of determining the extent of lead-based paint in other houses, and the best means of dealing with the presence of lead-based paint in houses in which it was present." (Pls' App. 91). Because lead paint poses the greatest hazard to children, VAMC management, in an effort to evaluate the scope of the lead problem, initially decided to determine (1) the number of children living in houses with chipping paint and (2) the extent to which the paint in those houses was lead-based. (Pls' App. at 3). To accomplish this goal, VAMC management sent out a memorandum and a survey in November of 1990. The memorandum (1) informed Village residents that paint samples taken from one of the Village houses indicated the existence of lead, (2) advised residents to discontinue home improvements, and (3) quoted the warning contained in Memorandum 138-8 regarding the potential hazard of lead paint. The survey (1) asked residents to notify them if they had paint that was peeling or chipping in the house, and (2) directed residents to notify them of the age of all persons living in the house. (Pls' App. at 113-115). Florence Lee returned her survey in December, 1990. In the survey, she indicated that she had a one year old child in the house and that she had some chipping and peeling paint "on the stairway as you go up stairs." (Pls' App. at 116). Based on Florence Lee's response, paint samples were taken from her home. The results, which came back on March 26, 1991, showed that the chips contained lead. (Pls' App. 82-83, and 117).

After the surveys were evaluated, VAMC management and Leslie Scott, an industrial hygienist employed by VAMC, set about to determine the best method for addressing the lead paint problem in the Village houses. According to Ms. Scott's declaration, the only method for assuring that lead paint in the houses would never pose a risk again was to remove all the paint, and then test the house to assure that removal was complete. The total estimated cost of removal was $6-7 million dollars. (Pls' App. at 4). According to Ms. Scott, the lead paint problem in the Village could also be dealt with by using an encapsulant to encapsulate the lead paint. The estimated cost of encapsulation was $1-2 million. (Pls' App. at 94). Ultimately, VAMC decided to encapsulate the lead paint in a number of Village houses. VAMC management also decided that families with children would only be allowed to live in houses that had been encapsulated. (Pls' App. at 94). Encapsulation in the first houses was completed in early 1992. On May 5, 1992, the VAMC learned that Kameron Lancaster had an elevated blood lead level. On May, 13, 1992, Florence Lee and her family, including Kameron Lancaster, were moved into a house in which the paint had been encapsulated. (Pls' App. at 94-95).

II.

The government has moved to dismiss this suit under 12(b)(1) for lack of subject matter jurisdiction, on the ground that the VAMC's decisions concerning the lead paint problem in the Village houses fall within the discretionary function exception of the FTCA.² The jurisdictional statute implementing the FTCA, 28 U.S.C. 1346(b), provides a limited waiver of sovereign immunity in suits against the United States for damages due to

personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

The Act also contains several exceptions to this waiver of sovereign immunity. At issue here is the discretionary function exception, which provides that the United States is not liable for

any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680. The discretionary function exception to the FTCA "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). The exception was created to "insulate the United States from liability arising from its agents' and employees' performance of duties involving discretionary decisions." Williams v. United States, 50 F.3d 299, 308 (4th Cir.1995).

In two recent cases, the Supreme Court has articulated a two-part test to guide Courts in determining when the government's conduct falls within the scope of the discretionary function...